Authority for the Removal of Fugitive Felons Apprehended Under 18 U.S.C. § 1073, 83-10
| Decision Date | 21 March 1983 |
| Docket Number | 83-10 |
| Citation | 7 Op. O.L.C. 75 |
| Court | Opinions of the Office of Legal Counsel of the Department of Justice |
| Parties | Authority for the Removal of Fugitive Felons Apprehended Under 18 U.S.C. § 1073 |
An individual charged with a violation of the Fugitive Felon Act, 18 U.S.C. § 1073, which makes it a federal offense to travel interstate to avoid a state felony prosecution, among other things, may be "prosecuted" only in the federal judicial district in which the original state crime was committed, or from which he fled, and "only upon formal approval in writing by the Attorney General or an Assistant Attorney General of the United States, which function of approving prosecutions may not be delegated."
Under Rule 40 of the Federal Rules of Criminal Procedure, an individual who is charged with a federal offense in one district and is apprehended in another may be brought back before the court in which the federal charges are pending against him. A court's duty to order removal under Rule 40 is not dependent upon a subsequent federal prosecution.
The Department of Justice has interpreted the term "prosecution" in the Fugitive Felon Act to include all steps in the federal criminal process after a fugitive has been taken into federal custody, including removal to the district in which the federal charges against him are pending, pursuant to Rule 40. The Department has also determined that the formal approval required by 18 U.S.C. § 1073 may not be given if the federal prosecution is not to be subsequently pursued. Although nothing in the legislative history of the Fugitive Felon Act or relevant case law mandates this interpretation, it is not clear whether a court would require formal written approval before issuing a Rule 40 removal order.
Federal removal under Rule 40 has been upheld against a Fugitive Felon Act defendant's claim that he was constitutionally entitled to extradition under state law. However, the Fugitive Felon Act was not intended to supplant state extradition procedures, and federal removal procedures should not be used to accomplish a Fugitive Felon Act defendant's return for prosecution or other appropriate disposition by the State. The policy considerations involved in making such a determination underscore the wisdom of the Department's requirement for formal approval for Rule 40 removal of Fugitive Felon Act defendants.
The cost of transporting a Fugitive Felon Act defendant pursuant to a court order under Rule 40 may be paid out of funds appropriated for the authorized activities of the United States Marshal. All or part of the cost of transportation may voluntarily be borne by the State seeking the fugitive's return, although any monies received from a State must be deposited into the general fund of the Treasury.
MEMORANDUM OPINION FOR THE DIRECTOR, EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYSThis memorandum responds to your request for our opinion whether a fugitive apprehended by federal authorities under the Fugitive Felon Act, 18 [ 76] U.S.C. § 1073, may be removed to the jurisdiction from which he fled, pursuant to Rule 40 of the Federal Rules of Criminal Procedure, if the sole purpose of removal is to return the fugitive to the custody of authorities in the State from which he fled. In the event federal removal is permissible in this situation, you wish to know the permissible source of funds to pay its costs.
Your request derives from an exchange of correspondence between the United States Attorney for the Eastern District of Pennsylvania and the Assistant Attorney General, Criminal Division. In 1982, the United States Attorney for the Eastern District of Pennsylvania wrote to the Criminal Division requesting reconsideration of the policy set forth in § 9-69.450 of the United States Attorneys Manual (Manual). That section provides that "removal proceedings under Rule 40" shall not be instituted in § 1073 cases without the written approval of the Assistant Attorney General, Criminal Division.[1] The United States Attorney stated that "the present Department policy which prohibits routine federal removal of [§ 1073] defendants is inconsistent with the Department's emphasis on federal-state law enforcement cooperation, and inhibits effective law enforcement." The Criminal Division's position is that the Department's policy of requiring written approval before removal in § 1073 cases is mandated by § 1073 itself. Furthermore, such approval may not be given where the government does not intend to pursue a federal prosecution under that statute. This latter position, as more fully developed in discussions with Criminal Division staff, is based not only upon an interpretation of the federal government's authority under the Fugitive Felon Act, as amended in 1961, but also upon a concern that a federal defendant removed under Rule 40 for the sole purpose of facilitating a state prosecution could claim some constitutional or statutory entitlement to be processed under state laws governing interstate rendition.[2]
We have examined the legislative history of § 1073 and its judicial and administrative interpretations in the half century since its original enactment. Although we find no basis on which to disagree with the Criminal Division's position with respect to its policy of requiring written approval for removal in § 1073 cases, we do not believe the situations in which such approval may be given are limited to those in which a decision has been made to pursue a federal prosecution under that statute. For reasons more fully discussed below, we believe the federal government's broad authority under § 1073 to assist local [ 77] law enforcement agencies in the apprehension of fugitive felons or witnesses permits it to return a fugitive to the jurisdiction from which he fled for prosecution or other appropriate disposition by the State. Furthermore, a defendant subject to removal under Rule 40 has no federal constitutional or statutory right to be extradited under state law. Federal removal should, however, be sought only in those situations where existing interstate rendition procedures cannot be relied upon to bring a fugitive to justice.
Finally the cost of transporting a federal § 1073 defendant pursuant to a federal court order under Rule 40 may be paid from funds appropriated for the authorized activities of the United States Marshal responsible for carrying out the court's order. Although all or part of this cost may be reimbursed by the State seeking the fugitive's return, any monies received from the State must be deposited directly into the general fund of the Treasury.
Section 1073 of Title 18, the so-called Fugitive Felon Act, makes it a federal offense to travel interstate for the purpose of avoiding a state felony prosecution, or custody or confinement after conviction, or to avoid giving testimony in a state criminal prosecution or investigation.[3] Under the venue provisions of § 1073, an individual charged with a violation may be "prosecuted" only in the federal judicial district in which the original state crime was committed, or from which he fled, and "only upon formal approval in writing by the Attorney General or an Assistant Attorney General of the United States, which function of approving prosecutions may not be delegated." [ 78]
The Fugitive Felon Act has been sustained against constitutional challenge as a valid exercise of Congress' power to regulate interstate commerce, U.S. Const, art. I, § 8, cl. 3. See, e.g., United States v. Bando, 244 F.2d 833 (2d Cir. 1957); Barker v. United States, 178 F.2d 803 (5th Cir. 1949); Hemans v. United States, 163 F.2d 228 (6th Cir.), cert, denied, 332 U.S. 801 (1947); United States v. Brandenburg, 144 F.2d 656 (2d Cir. 1944); Simmons v. Zerbst, 18 F.Supp. 929 (N.D.Ga. 1939). The "general purpose of the Act was to assist in the enforcement of state laws, " United States v Brandenburg, 144 F.2d at 659, and its enforcement has been held not to violate the rights of the States under the Tenth Amendment. See United States v. Miller, 17 F.Supp. 65, 68 (W.D. Ky. 1936); Lupino v. United States, 185 F.Supp. 363, 368 (D. Minn. 1960). In Miller the district court explained that [Congress] may make a crime the use of interstate commerce by a fleeing criminal in order to aid the states in the apprehension of the guilty and make certain, swift, and sure the punishment of those who commit crimes against the states. If such power be not lodged in the Congress, then the unity of our people to deal with crime is destroyed and the states crippled in punishing those who violate their laws and flee to another state. 17 F.Supp. At 68. The venue provisions of § 1073 have been interpreted consistently with this general purpose of assisting state law enforcement:
[T]he primary purposes of the venue section of § 1073 [are] to return the felon to the state where the original flight occurred in order to assist state officials in combating organized crime there, and to vindicate the federal interest in punishing acts committed in the judicial district where the original flight took place.
Rule 40 of the Federal Rules of Criminal Procedure ("Commitment to Another District") describes the process whereby a person who is charged with a federal offense in one district and is apprehended in another, may be brought back before the court in which the federal charges are pending against him. Rule 40(a) provides that "if a person is arrested in a district other than that in which the offense...
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